Restore the Constitution?

 Guest post by Camillus

Camillus, a former Republican Party officer in his home state in the Northeastern United States who was involved in campaigns at both the local, state, and federal levels during the 2010 elections.

Disclaimer: All guest posts are the opinion of the poster and do not necessarily represent the views of moonhowlings.net administration. M-H

“Restore the Constitution!”  It’s a cry, in various iterations, that one commonly hears from the Tea Party.  There have been “Restore the Constitution” rallies calling for “restoring the rule of law,” there are “Restore the Constitution” petitions circulating online, and there are “Restore the Constitution” blog sites.  Politically, the Tea Party movement portrays itself as the defenders of the Constitution keeping faith with the original intent of the Founding Fathers.

This is ironic.  A deeper examination of positions held by the Tea Party, particularly regarding the scope of the 10th Amendment, the repeal or modification of the 14th, 16th, and 17th Amendments, and the support for various nullification proposals, reflects a hostility to aspects of the Constitution as well as opposition to well-established principles in our Constitutional jurisprudence.  In the end, the vision of our Constitution expressed by the Tea Party movement is often fundamentally at odds with that of many of our leading Founders, including Washington, Adams, Hamilton, Jay, Marshall, and Madison (prior to his 1791 break with Hamilton).

A telling omission: The Tea Party and the 10th Amendment 

The 10th Amendment features prominently in the Constitutionalism of the Tea Party.  It provides that: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” To the Tea Party, the 10th Amendment is a forgotten (or ignored) restriction limiting the powers of the federal government to those explicitly enumerated in the Constitution.  What is actually ignored is the history of the 10th Amendment.  During the debates in Congress over what ultimately became the Bill of Rights, James Madison successfully defeated a motion to add the word “expressly”- as in “the powers not expressly delegated”- to the 10th Amendment, because, in his words, “it [is] impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication.” Ignoring Madison’s logic, the Tea Party would write the word “expressly” back into the 10th Amendment though its narrow interpretation.

 The Tea Party’s vision of the 10th Amendment also ignores the jurisprudential legacy of one of our earliest, and most consequential, Chief Justices- John Marshall.  According to public television reporter Chris Satullo, “John Marshall, as much as any man save for the great James Madison, determined what our founding charter really meant, and did so in ways that enabled the American experiment to thrive.” In this regard, note that “thriving” is inextricably intertwined with a vigorous and capable federal government.

 Fundamentally, Marshall:

“[I]interpreted the Constitution in a way opposite to the Tea Partiers and libertarians who now cite the 10th Amendment as cause to roll back the clock to 1850.

Marshall led the Supreme Court over 34 years, deciding the key cases that established the court as an equal branch and shaped the role of the federal government.

One of those cases is McCulloch v. Maryland.  Apparently the Tea Partiers now carrying on about the 10th Amendment never heard of McCulloch or think it wrongly decided…

Tea Partiers today insist, following their hero Jefferson (no fan of the Constitution), that this clause limits Congress and the President only to those powers specifically named.  They would have our leaders hamstrung in the face of any event not anticipated in 1787.  They would declare illegal most of modern government, from the Tennessee Valley Authority to Social Security to the EPA.

But Marshall decided McCulloch, the great test of this question, in precisely the opposite way, establishing that the federal government has implicit powers to “ensure the general welfare”…

In the end, as one legal scholar has concluded, the Tea Party’s narrow reading of the 10th Amendment “is without support in [its] legislative history or [in] Supreme Court” precedent.

 “Constitutional graffiti”

At the same time, some Congressional Republicans, including Tea Party darling Michele Bachmann, have been busy proposing a veritable blizzard of Constitutional edits and fixes. These include: repeal of the 17th Amendment (ending the direct election of Senators), amending the 14th Amendment (to end birthright citizenship), a prohibition on government ownership of private corporate stock, a “Parental Rights Amendment,” various proposed term-limits amendments, an amendment prohibiting flag burning, various balanced-budget amendments, a national prohibition on gay marriage, an amendment requiring a supermajority vote for any tax increases, and an amendment restricting the President’s authority to negotiate treaties.  Reaching back to the antebellum “nullification” debates, Rep. Eric Cantor (R-VA), has even called for a “Repeal Amendment” which would provide for the nullification of federal laws by a two-thirds majority of the states, and there have been other calls for “nullification” as well.    

Other Tea Party candidates weighed in offering their own Constitutional tweaks during the election campaign.  For example, Joe Miller in Alaska announced that unemployment benefits were unconstitutional (despite the fact that he formerly received them), while Rand Paul said the same thing about the Civil Rights Act of 1964.  Meanwhile, both Glen Beck (“the most highly regarded individual among Tea Party supporters,” according to one recent poll by Democracy Corps- he is viewed as an “educator”) and Sharron Angle have called for the repeal of the 16th Amendment (which established the federal income tax). 

The movements to repeal or amend the 14th, 16th, and 17th Amendments, and the ghoulish return of “nullification” from its Civil War-era grave, warrant further analysis, as they illuminate the populist/libertarian assault on the Constitution, and federal authority, presently underway. 

The Tea Party has become the political home of modern nativism. This finds expression in calls for the modification of the 14th Amendment to eliminate birthright citizenship.  The 14th Amendment is a legacy of the Civil War and Reconstruction.  It plainly states that anyone born in the United States is a citizen, and entitled to the equal protection of the law: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  The Tea Party would strike from the Constitution one of the most seminal statements elucidating the concept of human freedom ever written in the history of the world.  The movement to amend the 14th Amendment is an ominous harbinger of other dangers ahead.

Calls for the repeal of the 16th Amendment are particularly reckless and irresponsible. The 16th Amendment, ratified in 1913, gives Congress the “power to lay and collect taxes on incomes, from whatever source derived . . . .”  The power to tax, however, was not a 20th Century addition to the Constitution- Article I, Section 8 vests Congress with the “[p]ower to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . .”   Given this clear language, one might ask, why was the 16th Amendment needed?  The answer is simple- it was necessary in order to reverse a Supreme Court decision, Pollock v. Farmers’ Loan & Trust Co., holding that the federal income tax was unconstitutional.  The Pollock case is significant in that the Court broke with its own prior precedent affirming the constitutionality of the federal income tax, such as Springer v. United States (an 1889 case upholding the Constitutionality of a federal income tax), and ignored the clear language of Article I, Section 8. 

While the level of the federal income tax, and its structure, is open to debate, there can be no dispute that it was an essential element in the creation of a stronger America.  And that was an essential predicate to America’s world-saving role in the 20th Century- both from the spectre of Nazism, and from Communist tyranny.  Those who would gut our national power, like Glen Beck and Sharron Angle, either imagine that similar dangers will never arise in the future, or worse, simply do not care.  If the Tea Party succeeds in stripping Congress of its power to tax income, how will the federal government fulfill its Constitutional mandate to “provide for the common Defence and general Welfare of the United States . . . .”?    

The 17th Amendment provides for the direct election of United States Senators. Under the original Constitution, they were appointed directly by state legislatures.  Like the 16th Amendment, it was also ratified in 1913.  Astonishingly, its repeal has become a favorite cause of Tea Party candidates across America.   For example, speaking in July, Rep. Paul Broun (R-GA) informed a Tea Party crowd that the 16th (the federal income tax) and 17th Amendments began the “process of socializing America,” and that both should be repealed.  Sen. Mike Lee (R-Utah), Rep. Jeff Landry (R-LA), and Rep. Raul Labrador (R-ID), also expressed support for repealing the 17th Amendment during the election campaign (in an ironic twist illuminating the subject of this article, Sen. Lee’s web page features the slogan “Join us in restoring Constitutional government to Washington!”). 

The direct election of Senators by the people might sound innocuous, but in the view of the Tea Party, it’s ratification “dealt a blow to the Framers’ vision of the Constitution from which we have yet to recover.” In the view of the Tea Party, repealing it would enhance “states’ rights.” This puts the Tea Party in the awkward position of arguing that democracy isn’t a good thing.  It also illuminates the real motivation in play- weakening the federal government, weakening the Union, and empowering State governments- which is separate and distinct from empowering citizens.  To illustrate this point, consider: is it better to have United States Senators representing your state legislature, or representing you?

The sweet smell of Magnolias is discernable in much of the Tea Party’s Constitutionalism.  This is particularly true in the calls for state nullification, largely centered on objections to “Obamacare.”  Nullification, of course, was a doctrine conjured up and utilized by leaders in the South in the antebellum period.  It has essentially laid dormant in its grave since the end of the Civil War (except for a brief dusting off during the Civil Rights era) but has now arisen, zombie-like, to haunt the political landscape again.

An entire essay could be written on the pernicious and destructive nature of nullification.  For present purposes, it is enough to say that (to paraphrase Lincoln), it is in many ways the essence of anarchy.  It utterly destroys federal authority, and is more appropriate for a confederation of independent states than a union (smell the Magnolias again?). If it were ever adopted, it would mean that there would be no uniform national law- different federal laws would be enforced in different states.  Thus, it is a step towards Balkanization- towards eventual disunion.

It is also fundamentally antithetical to the Constitution of the Founders- indeed, it is a direct assault upon it. Article VI of the Constitution, after all, provides that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States and of the several states, shall be the Supreme Law of the Land, and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”  In the end, it is one thing to argue that an act of Congress is unconstitutional, but another thing entirely to arge that States have the authority to nullify otherwise constitutional acts of Congress.  And the Tea Party seems to be taking the latter approach.                   

An objective observer would call all of this “re-writing,” not “restoring.”  And there is no remotely comparable activity occuring on the political left.  As one author has noted, “the self-proclaimed party of conservatism has become a constitutional graffiti movement.”

Our modern Anti-Federalists

In its attempt to portray itself as the defenders of the Constitution, the Tea Party appropriates the legacy of the Founding Fathers. However, the Federalist Papers, and the actions of Washington, Hamilton, Adams, and Marshall in office, reflect a rather different view of federalism and the nature of the Constitutional compact.  That’s not surprising.  They knew that the Constitution created a strong national government- indeed, that was the point of the entire process of calling the Constitutional convention in Philadelphia in the first place. Such a vision is fundamentally at odds with reading the 10th Amendment as a veritable straight jacket restricting national power, with support for Cantor’s Repeal Amendment and state “nullification” laws, or with repealing the 16th Amendment.

Indeed, a common thread running through much of the Tea Party’s view of the Constitution is a desire to eviscerate the power of the federal government.  In their dogmatic opposition to a vigorous central governing authority, the Tea Party actually voices views similar to those expressed by opponents of the Constitution during the ratification debates.  They are the modern heirs of the Anti-Federalists, and not of the Founders.  And that’s problematic, because if the Anti-Federalists had prevailed in the early years of the Republic, it is unlikely America would have grown into the prosperous, free, powerful, and united nation spanning an entire continent that it ultimately became… or perhaps, even survived. 

 “Facts are stubborn things”

These facts frame what the Tea Party means by “Restore the Constitution.” They do not mean the document that we have actually had during the course of our history.  They do not mean the document we have lived with for the past two hundred years- the one that helped our nation achieve hitherto unprecedented levels of prosperity and freedom.  And however loudly they may say they love the Constitution and the Founders, the truth is that they would amend or repeal crucial elements of it, effectively jettison more then two centuries’ of jurisprudence, and redefine federalism in a way that reverses the outcome of the Constitutional ratification debates, and even of the Civil War.   

In the end, I don’t think it’s the Constitution that the Tea Party wants to restore; it’s the Articles of Confederation.

Camillus is a former Republican Party officer  who was involved in campaigns at both the local, state, and federal levels during the 2010 elections.